IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2024 0277

IN THE MATTER of the Bail Act 1977 (Vic)		
	
IN THE MATTER of an application for bail by EP	

BETWEEN:

EP	Applicant	
		
v		
		
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent	

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JUDGE:	Champion J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	5 December 2024	
DATE OF JUDGMENT:	20 December 2024	
CASE MAY BE CITED AS:	Re EP	
MEDIUM NEUTRAL CITATION:	[2024] VSC 827	

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CRIMINAL LAW — Application for bail — Dangerous driving causing serious injury — Reckless conduct endangering serious injury — Theft of motor vehicle — Failure to stop for an accident resulting in serious injury — Driving as a learner without an appropriate supervisor driver — Applicant drove vehicle on the wrong side of the road colliding head on with another vehicle — Injured passenger in applicant’s vehicle suffering paralysis from chest down — Child applicant — No criminal history — Exceptional circumstances demonstrated — Unacceptable risk demonstrated — Application refused — Bail Act 1977.

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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr D Thomas	Victoria Legal Aid 	
			
For the Respondent 	-- 	Mr G Carr, Victoria Police	

HIS HONOUR:
Introduction
1	By application dated 20 November 2024, EP [‘the applicant’] applies for a grant of bail from this Court under the Bail Act 1977 [‘the Act’].  The applicant is a 17 year old child, whose application relates to the following charges said to have occurred on 27 September 2024:
(a)	Dangerous driving causing serious injury;
(b)	Reckless conduct endangering serious injury;
(c)	Theft of a motor vehicle;
(d)	Failure to stop for an accident resulting in serious injury; and 
(e)	Driving as a learner without an appropriate supervisor driver.
2	At the oral hearing, the prosecution advised that four other charges (charges 5 through 8 in the applicant’s affidavit in support of an application for bail) were anticipated to be withdrawn.  I have not therefore considered these charges in this ruling.  I note for completeness however that they relate to an alleged attempted theft and a subsequent assault.
3	The applicant is currently bailed, or on summons, for several other matters involving, amongst other alleged offending, aggravated burglary, aggravated home invasion, theft of a motor vehicle and arson.  This offending is alleged to have occurred in August and September 2024.
4	The applicant is currently remanded at Parkville Youth Justice Centre.
Relevant procedural history
5	The applicant has twice applied for bail in the Children’s Court at Bendigo on 14 October and 4 November 2024.  Both applications were refused.  
The alleged offending
6	At 5:30am on 26 September 2024, it was reported to police that a white Toyota Corolla had been stolen from a residential carport in a small town in the north west of Victoria.
7	On 27 September 2024 at approximately 1:50am, it is alleged that the applicant, with three or four others, unlocked and rummaged through a VW Golf Sedan in the eastern suburbs of Melbourne.  The owner of the vehicle disturbed the group in the process and chased them off.  The group returned to their vehicle — a white Toyota Corolla bearing the same registration as the one referred to above — before revisiting the address of the VW Golf Sedan and chasing down its owner.  The group pushed the owner to the ground, kicked and punched him and pointed a machete at him.  The owner sustained grazes, bruises and a possible sprain or broken arm.
8	On the same day at 9:33am, the applicant, with the same group, was driving the white Toyota Corolla in the eastern suburbs of Melbourne.  At a high speed and while travelling on the wrong side of the road, the Corolla collided head on with another vehicle.
9	CCTV footage captures the applicant and co‑accused exiting the vehicle and fleeing the scene of the collision.  One of the offending group remains in the Corolla, unconscious and unable to move.  It has since been confirmed that the unconscious group member is a female who suffered critical injuries and remains paralysed from the chest down.  She had urgent spinal surgery, however, at the time of giving this ruling, it is uncertain whether her paralysis and the extent of is permanent.  At the oral hearing, prosecution counsel suggested that determining the extent of the paralysis will take approximately a further five months.
Arrest and interview
10	Shortly after fleeing, the applicant was sighted and arrested in close proximity to the scene of the collision.  He was conveyed to Ringwood police station where he was subsequently remanded in custody.  
11	The applicant made a no comment police record of interview.
Applicable law 
12	Section 3B of the Act details mandatory factors that must be taken into consideration in a child bail application.
13	I am also required to consider whether there are any family or domestic violence orders in force against the applicant.  I note that a limited interim intervention order made in May of this year is on foot against the applicant.  The protected person in the order is his older brother.  
Step 1 — Exceptional circumstances
14	By virtue of section 4AA(2)(c)(i) of the Act, the exceptional circumstances test applies.  The applicant is accused of an offence under schedule 2 of the Act (namely, dangerous driving causing serious injury (item 22(g) of schedule 2)), and that offence is alleged to have been committed while the applicant was already on bail for a further schedule 2 offence (namely, aggravated burglary (item 22(b) of schedule 2)).  
15	The court is required to refuse bail unless satisfied of exceptional circumstances justifying a grant of bail.  In applying the exceptional circumstances test, a court must have regard to the surrounding circumstances including but not limited to those set out at section 3AAA of the Act.  The onus in satisfying the court in relation to exceptional circumstances lies with the applicant.  
Step 2 — Unacceptable risk 
16	Should the court be satisfied that exceptional circumstances exist justifying a grant of bail, the court must then apply the unacceptable risk test.  That is, a court must refuse to grant bail if satisfied that the applicant would pose a risk of one of the kinds set out at section 4E(1)(a) of the Act, and that risk is unacceptable.  The prosecutor bears the onus in satisfying the court of unacceptable risk, both in terms of the existence of the risk and that it is unacceptable.  Further, in considering unacceptable risk, the court must have regard to the surrounding circumstances, again including those at section 3AAA of the Act, and whether the risk can be mitigated to an acceptable level through the imposition of bail conditions.  
The applicant’s submissions
Exceptional circumstances
17	It was submitted that the following factors, either individually or in combination, establish exceptional circumstances,
(a)	the applicant’s special status under the law as a child at the time of offending;
(b)	the applicant’s vulnerability, particularly as a child who has a history of child protection involvement and exposure to family violence;
(c)	the availability of stable accommodation and support from the applicant’s mother; and
(d)	the availability of bail support services, namely Youth Justice Supervised Bail.
Section 3AAA factors
18	The applicant submitted that the following surrounding circumstances are of particular relevance to this application:
(a)	The applicant has no criminal history; 
(b)	The applicant has no prior dispositions relating to the commission of offences on bail and has never been subject to court‑imposed bail; 
(c)	Although a limited intervention order has been made against the applicant by his brother, the order does not prevent the applicant from returning to the family home and his family remains supportive of him.  The applicant has also accepted a referral to a service that provides emotional regulation and self‑management counselling;
(d)	The applicant has a special vulnerability.  As to section 3B of the Act, counsel placed emphasis on the requirement to impose the minimum intervention necessary on children under the Act, with remand being the last resort.  It was submitted that the Court could not consider that remand is the last remaining option for the applicant given he has accommodation with his family and supports through the Youth Justice Supervised Bail program available in the community.  Counsel further raised the difficulties involved in strengthening and preserving the applicant’s family ties in the context of them living in Bendigo while he is remanded in Parkville.  It was submitted that the applicant’s Sudanese background and substance misuse are relevant factors, as well as the potentially stigmatising and criminogenic effects of him having, at the time of hearing, spent 68 days in custody.  
(e)	The applicant’s personal circumstances demonstrate hardship as well as promise.  The applicant has no contact with his biological father and has had family violence perpetrated against him by his step‑father, against whom an intervention order has been taken to ensure no contact with the family.  Child protection has previously been involved with the applicant for family violence concerns.  At the time of the offending, the applicant was undertaking Year 12 with a view to completing a Victorian Pathways Certificate.  The applicant also has a positive employment history, including 10 months of work prior to July 2024 in a local fast‑food chain, as well as an interest in an apprenticeship or hospitality work.  He also has a keen interest in football and basketball.  
(f)	Defence counsel further submitted that, in all likelihood, the applicant’s charges will be dealt with in the Children’s Court and he will not receive a custodial disposition should he be found guilty.  It was submitted at the oral hearing that a Children’s Court magistrate would need to be satisfied that exceptional circumstances exist to uplift the matter to a higher court.  Further, as to the possibility that the applicant’s outstanding charges could be heard together with the charges subject to this application therefore making custody more likely, it was submitted that the outstanding charges ought not be given much weight in this application.  That is because, it was said, the charges relate to unproven matters and as at the oral hearing no case conferencing had been undertaken to move them forward.  
Unacceptable risk
19	It was submitted that comprehensive bail conditions can ameliorate the risk in this case to an acceptable level.  
20	It was submitted, as relevant to the assessment of risk, that the applicant’s alleged offending has occurred in a short burst of just three months before which he had no prior criminal history.  His time in remand so far, it was said, has been an eye‑opening and negative experience for him such that he is deterred from new offending.  In remand, he has engaged well and is considered by staff at Parkville to be respectful, polite and relaxed.  Further, the applicant’s family is supportive of his rehabilitation and the maintenance of a prosocial lifestyle in the community.  At the oral hearing, when challenged by the prosecution, the applicant’s mother made clear that she would not hesitate to contact police were the applicant to breach any bail conditions imposed upon him.  
21	At the oral hearing, counsel for the applicant called Ms Nataly Holahan, author of the Youth Justice Bail Service report dated 2 December 2024 accompanying the application.  Ms Holahan’s evidence was that the applicant had been assessed to be eligible for supervised bail on this occasion (after two failed attempts) as he now demonstrates: willingness to engage in emotional regulation and family violence counselling and had been referred to an appropriate service; awareness of the emotional impacts of his alleged offending on his mother; and openness to ‘looking at what life would look like without the use of substances’.  Ms Holahan also gave evidence summarising the suite of supports and community‑based programs and appointments that would be available to the applicant if a grant of bail were made.
22	Counsel also called the applicant’s mother, AO.  AO gave evidence with respect to her parental responsibilities to her other children; work commitments; hopes for an improved relationship between the applicant and his older brother (who is the protected person in the limited intervention order on foot against the applicant); desire to have the applicant home; and disapproval of his offending behaviour.
Prosecution’s submissions
23	The prosecution oppose this application contending that the applicant cannot demonstrate exceptional circumstances and, even if he could, he poses an unacceptable risk.  
Section 3AAA factors
24	It was submitted that the following factors weigh against a grant of bail in this case.
(a)	The circumstances of the offending can only be categorised as very serious.  The injured passenger in the offending group is seriously injured and was fortunate to survive the collision.  The applicant immediately attempted to flee the collision demonstrating no regard to the injured passenger’s welfare, nor that of the other persons involved in the collision.
(b)	The prosecution case is clearly strong.  The applicant was located and arrested shortly after the incident wearing clothes that are depicted on CCTV footage from the collision.  The injured passenger has also made a statement identifying the applicant.  
(c)	While the applicant has no criminal history, he was on bail for serious offending at the time of the collision and since then was charged on summons for the offence of aggravated home invasion.  
(d)	The care and support that is offered by the applicant’s mother was present at the time of the alleged offending.  Despite his family environment, he has commenced committing very serious offences that seriously endanger the safety and welfare of many members of the public.  The applicant’s recent behaviour suggests that his mother, despite her ‘prosocial’ stance, is unable to control him.  She also has the care of five of the applicant’s younger siblings.  
(e)	The applicant was the eldest child in the offending group.  It was submitted that, rather than being influenced by his peers, it appears more likely that he led them to engage in the conduct that ultimately resulted in the collision.  
(f)	Despite the applicant being a child and having no criminal history, his alleged offending for which he seeks bail is so serious that it would be open to a sentencing court to impose a custodial disposition.  This is more likely if it is considered that his outstanding charges could be heard together with the charges that are the subject of this application on a consolidated plea.  The applicant was almost an adult at the time of the offending.  There is no evidence of a mental impairment.  It is difficult to identify any mitigating circumstances.  Therefore, it was submitted, a mixed disposition of six months’ imprisonment and a youth attendance or supervision order is within range.  
(g)	Relatedly, even if the applicant did not receive a custodial sentence or received a custodial sentence that would see him remanded for longer than the sentence itself, the prosecution submits that I should find that the applicant poses an unacceptable risk and should be refused bail accordingly.  
25	Further, in response to a question asked by the Court at the oral hearing, counsel for the prosecution advised that he could not say when the applicant’s charges may be listed for contest mention at Bendigo, however, the courts could generally accommodate a plea ‘quite quickly’.
26	Cross examined by the prosecution, Ms Holahan’s evidence was that in the immediate term, the services and programs available to the applicant would see him occupied for two hours per day Monday to Friday with no support or supervision currently in place out of hours or over the weekends.  It was said, as schools are closing down over December, ‘there’s no opportunity to explore apprenticeship courses or hospitality courses leaving … a lot of gaps in the timetable’.  Ms Holahan confirmed that the applicant had expressed that ‘he felt quite bad regarding the [injured] young person [in the collision] and the outcome for her in terms of her physical … situation’.
27	In response to a question asked by the Court, Ms Holahan further confirmed that a change in attitude towards his misbehaviour and a referral to counselling for family violence and emotional regulation were the two new factors that led to the applicant to be found to be eligible for youth supervised bail on this occasion despite two prior failed attempts.  
28	AO, the applicant’s mother, was also cross examined.  Her evidence was that if she were not at home to supervise the applicant then his older brother would be available to do so (noting that the brother would be free to leave the house at any time and she could not ensure the applicant’s supervision on those occasions).  She indicated that she would not hesitate to contact police if the applicant were to breach his conditions of bail by, for example, not returning by curfew.  AO also said that she had observed a drastic change in the applicant’s behaviour since he allegedly began offending earlier this year; in her experience, he had been a well behaved child until this year.  
Analysis and conclusions
Introduction
29	As discussed above, the applicant bears the burden of satisfying the court that exceptional circumstances exist to justify the grant of bail.  If he succeeds in doing so, the onus then shifts to the prosecution to satisfy the court that an unacceptable risk exists that cannot be mitigated to an acceptable level by the imposition of any bail conditions.  There is no dispute between the parties that these two tests apply to the application.  
30	In reaching a conclusion in relation to both the exceptional circumstances and unacceptable risk tests, the court must consider the surrounding circumstances relevant to the application.  Further, it must also be mindful of broader concerns such as the safety of the community, the presumption of innocence, consistency in decision‑making and the need to facilitate public understanding of bail practices.
31	A key factor in this application is that the applicant is a young person, as he is 17 years old.  As pointed out above and put forward strongly on his behalf, as a result of his young age, special considerations mandated by virtue of the factors set out in section 3B of the Act, apply to the resolution of his application and must be taken into account.  
32	Furthermore, as he is entitled to do, the applicant relies on a combination of circumstances in order to satisfy the exceptional circumstances test.  
33	With these factors in mind, I turn to considering the merits of the application.  The application is finely balanced and the resolution of it has given the Court great concern.
Has the applicant shown that exceptional circumstances exist?
34	It is well understood that the exceptional circumstances test, although not impossible to reach, is a high threshold.  The applicant must show there are circumstances that are “right out of the ordinary” to justify his release on bail.  
35	At the heart of this application is that the applicant is a child.
Strength of the prosecution case
36	In my opinion, I am unable to conclude that the overall cases against the applicant should be regarded as weak, or foredoomed to fail, but rather in my opinion, they can be regarded as reasonably strong.  At this early stage, little more can be said, but simply observe that it is not the role of this Court to form final conclusions about these matters.  
Personal background
37	The applicant is 17 years old.
38	It is proposed that if he receives a grant of bail the applicant will reside at his family home.  He is said to be supported by his mother and six siblings.
39	With respect to his family relationships, the applicant is a respondent to an intervention order where his brother is the affected family member.  
Outstanding matters
40	It is a relevant consideration that the applicant has no previous convictions, however, it is notable that he faces a number of outstanding matters which are listed in the affidavit in support of this application.  In a number of these matters, the applicant was on bail at the time of his alleged present offending.
41	The outstanding matters are alleged to have begun on or about 16 August 2024 and include allegations of multiple thefts of property including motor vehicles, obtaining property by deception, aggravated burglaries, recklessly causing injury and unlawful assault; retention of stolen goods; handling stolen goods; aggravated home invasion; and arson. These are clearly very serious allegations the applicant faces.
Delay
42	As to delay, extensive submissions were not made by counsel.  The matter appears to be at an early stage in proceedings, but insufficient materials were put before the Court for delay to weigh heavily in either direction in this application.  That said, if the applicant were to plead guilty in respect of the charges, it is understood that the matter may be resolved relatively efficiently.
Parity
43	The applicant points to parity of treatment as a circumstance which must be taken into account.  The applicant is alleged to have had five passengers in the car he was driving.  Leaving aside the 13 year old, who received serious injuries as a result of the impact and is hospitalised, the remaining co‑offenders were:
(a)	EH, who was 13 years old;
(b)	PT, who was 14 years old;
(c)	PH, who was 16 years old; and
(d)	NH, who was 15 years old.
44	A number of these co-offenders have various prior convictions and pending charges.
45	It is further notable that three of the four listed above were each on pre‑existing grants of bail in respect of serious charges involving violence, armed robbery, and associated types of offences.
46	The applicant in this matter, on the other hand, is the oldest of the group, but at the same time has no criminal history.  
47	I have taken the question of parity of treatment into account.  I understand that the applicant may feel a sense of grievance in circumstances where his application may be refused, and others who were involved in the events are not remanded in custody.  On the other hand, the applicant was the driver of the vehicle and to that extent was in control of the circumstances of its driving.  It might be reasonably concluded that he bears a considerable degree of responsibility for the events that happened.
Bail support
48	The applicant relies on a Bail Service Report from Youth Justice that recommends he be admitted to supervised bail.  He is assessed by Youth Justice as suitable to engage with the Youth Justice Supervised Bail program.  The recommendations of this report have taken into consideration the following matters, including, his improved attitude throughout the supervised bail assessment, his display of willingness to adhere to the Youth Justice Supervised Bail program, his agreement to engage with support services including Youth Justice community support service, AXIS employment and the Salvation Army; and acceptance of a referral to Thrive Wellness and Consulting for counselling; and that he has a supportive family.
49	The report identifies that the applicant participated in a Zoom video link for the purpose of the supervised bail assessment.  He is said to have presented with a polite demeanour and displayed a willingness to adhere to the program.  The report notes that the applicant is 17 years old, currently in custody for the first time, and has no prior history with the youth justice system.  
Views of the victims
50	The views of the victims are unknown.  
Conclusion on exceptional circumstances
51	In all the circumstances, and taking into account all the matters put on the applicant’s behalf, and particularly his young age and vulnerabilities, I am prepared to accept that he has met the test of satisfying the Court that there are exceptional circumstances.  However, as is well understood, that is not the end of the matter as the Court must move to consider whether the applicant represents an unacceptable risk if he was to be granted bail, such that no sufficient conditions can be imposed to reduce the risk to an acceptable level.
Has the respondent shown there is an unacceptable risk that cannot be moderated by bail conditions?
52	With respect to the risk posed by the applicant, I have considered the submissions of the parties and all the relevant factors.  Many of the issues discussed when considering the first test to be considered also have relevance to the unacceptable risk test, and I have had regard to all of them. 
53	The respondent argues that if the applicant was granted bail he would represent an unacceptable risk of committing a schedule 1 or a schedule 2 offence, and endangering the safety or welfare of any other person.  In making this assessment, the Court is obliged to have regard to the surrounding circumstances as set out in section 3AAA of the Act.
54	The respondent acknowledges that the applicant is a child and, as such, a sentencing court has expanded non‑custodial sentencing options.  It is further noted that, despite the fact the applicant has no prior criminal history, the alleged offending in the present application is “so serious that it is open to a sentencing court to impose a custodial disposition”.  It is pointed out the applicant was almost 17 and a half years old the time of the alleged offending; given that there is no evidence to suggest that he suffers from a mental impairment of any kind other than his age, it is difficult to identify some key mitigating circumstances on the offending for which he is seeking bail.
55	When assessing risk, the Court is obliged to have regard to the surrounding circumstances.  In this instance, this includes that the applicant was already on bail for serious offending, and has since been charged with the offence of aggravated home invasion, listed for a committal mention on 5 March 2025.  Accordingly, the applicant faces very serious charges for which it would appear open for a sentencing court to impose a custodial outcome.  It is of significant concern that the applicant has so many outstanding charges for which he was on bail at the time he is alleged to have committed the current serious conduct.  Little explanation has emerged as to why supposedly all of a sudden he is alleged to have begun committing serious crimes. 
56	Taking all matters into account, in my opinion, the applicant poses a considerable risk for the reasons argued by the respondent.  This is particularly so given the frequency of his alleged criminal conduct in the period leading up to the current offending.  He is alleged to have committed many serious offences, involving violence and aggravated burglaries.  He was on bail for many of these matters and, in the face of the constraints imposed by those bail orders, the evidence suggests that he was the driver of vehicle that he drove dangerously, resulting in very serious outcomes.  
57	In relation to the risk the applicant allegedly poses to members of the public, this risk is clearly apparent.  There appears to be a very troubling escalation in the seriousness of his alleged offending conduct in the period leading up to the current offending.  A number of these instances of alleged offending occurred in disparate areas around outside Melbourne, suggesting a significant lack of supervision of a 17‑year‑old, as well as an attitude in defiance of authorities imposing bail outcomes.
58	Despite the supervision offered by Youth Justice, and other possible agencies, in light of his history, in my opinion there will remain a risk the applicant will continue to offend.  In my view, the degree of actual supervision offered borders on being superficial.  The matter for consideration is whether what I believe to be the unacceptability of the risk can be ameliorated by the imposition of conditions, to a level that becomes acceptable in all the circumstances.  It is not a question of the elimination of all risk.  
59	In resolving this application, I have also carefully taken into account the special position young people have in the criminal justice system and the need to place emphasis on the principle of rehabilitation.  However, these special circumstances must be properly weighed along with the matter of risk.  
60	Ultimately, for the reasons set out by the respondent, I consider that the conditions put forward, and the support the applicant can have provided to him, are not sufficiently capable, even in combination, to reduce the risk of further offending to an acceptable level; this risk being that he will commit further offences of a serious kind.  In all the circumstances, I am not prepared to accept that the degree of risk the applicant poses can be satisfactorily managed even with the imposition of strict bail conditions, and available supports.  
61	In the circumstances, I am satisfied the respondent has established the applicant represents a risk and the risk is unacceptable.  
62	This application for bail will therefore be refused.  
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